South Carolina Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 61 South Carolina cases in which the defendant alleged prosecutorial error or misconduct. In 19, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In five, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Of the 19 cases in which judges reversed or remanded the conviction, indictment or sentence, eleven involved a prosecutor’s closing argument, five involved the prosecution withholding evidence from the defense, two involved racial discrimination in jury selection and one involved eavesdropping.

Eleventh Circuit Solicitor Donald Myers’ conduct prompted judges to throw out at least two convictions and three death sentences. In at least another four cases, judges ruled his conduct did not prejudice the defendant and upheld the conviction. Myers has been a solicitor for 26 years.

In January 2000, the state Supreme Court reversed Robert Quattlebaum’s murder conviction and death sentence because Myers’ assistant, Francis Humphries, eavesdropped on a conversation between Quattlebaum and his defense attorney. Humphries, along with several sheriff’s officers, monitored and recorded the privileged conversation. The following week, Humphries told Myers about the eavesdropping but not the videotape. Myers did not disclose this information to the defense. Quattlebaum did not learn about the eavesdropping or the videotape of the conversation until two years after his trial.

“Never before have we addressed a case involving deliberate prosecutorial intrusion into a privileged conversation between a criminal defendant and his attorney,” wrote Justice E.C. Burnett. “We will not tolerate deliberate prosecutorial misconduct which threatens rights fundamental to liberty and justice.”

The court disqualified anyone in Myers’ office from retrying Quattlebaum. As a result of his eavesdropping, the state Supreme Court later suspended Humphries’ license to practice law for one year.

In March 2002, the state ethics panel recommended the state Supreme Court reprimand Myers for failing to supervise Humphries. The panel said Myers, who had discussed the eavesdropping with Humphries several times over two years, should have immediately disclosed it to the defense.

In May 2003, the state Supreme Court issued a private reprimand because Myers “did nothing in his supervisory capacity to ensure that his office disclosed that a privileged attorney-client conversation was overheard.”

In the same disciplinary proceeding, the court also criticized Myers’ conduct in an unrelated murder case.

In March 1992, Myers and assistants prosecuted Robert Sutherland for capital murder. The night before striking the jury, Myers and his “jury selection team” met to review potential jurors to decide whom to strike. During their meeting, the group had questions about a specific juror. In order to determine if he lived at the address provided, one of Myers’ assistants called the phone number. The person who answered said it was the wrong number. The court held this attempt at communication with a juror was improper and issued “a letter of caution.”

In 1992, the state Supreme Court reversed Raymond Patterson’s murder conviction and death sentence because Myers failed to provide a race-neutral reason for striking the only potential black juror from the panel.

Between 1979 and 1982, Myers’ improper closing arguments prompted the state Supreme Court to vacate four death sentences.

In December 1982, the Supreme Court reversed Michael Sloan’s murder conviction and death sentence because Myers made numerous improper arguments at trial, including commenting on Sloan’s decision not to testify. During his closing argument in the sentencing phase of the trial, Myers said, “Has anyone said to you he’s sorry, sorry for what he did? ... He has pled not guilty. As he sits in this courtroom he is not guilty…Is that someone who wants to be rehabilitated?”

The state Supreme Court ruled this argument was clearly improper and prejudicial.

“A defendant’s exercise of his right to plead not guilty is never a permissible basis upon which to impose the death penalty; this is particularly true in a capital case in this state, where a defendant must plead not guilty to have his sentence determined by a jury,” wrote Justice Julius Ness.

In November 1982, the state Supreme Court vacated Ronald Smart’s death sentence because in closing argument Myers improperly drew attention to his decision to seek the death penalty and “implied that other citizens of Lexington County including himself would strongly disapprove of a life sentence.”

In October 1979, the state Supreme Court vacated Larry Gilbert’s death sentence because in his closing argument Myers “suggested to the jury that its responsibility for deciding appellant’s fate was lessened” because he would be able to appeal his conviction.

In August 1979, the state Supreme Court vacated Rudolph Tyner’s death sentence because in his closing argument Myers “diverted the jury from its duty to decide appellant’s punishment on the basis of the evidence presented, and impermissibly suggested to the jury panel that the responsibility for appellant’s sentence would rest with a higher tribunal.”  ¶ 11:11 PM